Madras High Court
Marimuthu vs State Rep. By on 24 January, 2023
2023/MHC/382
Crl. A(MD)No.607 of 2019
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated : 24.01.2023
CORAM:
THE HONOURABLE DR.JUSTICE G.JAYACHANDRAN
AND
THE HON'BLE MR JUSTICE SUNDER MOHAN
Crl. A(MD)No.607 of 2019
Marimuthu : Appellant
Vs.
State rep. by
The Inspector of Police,
Vilathikulam Police Station,
Tuticorin District.
(In Crime No.120 of 2014). : Respondent
PRAYER: Criminal Appeal is filed under Section 374 (2) of the Code of
Criminal Procedure, to set aside the judgment dated 02.12.2019 made in
S.C.No.254 of 2015 on the file of the I Additional District and Sessions
Court, Tuticorin.
For Appellant : Mr.C.Mayilvahana Rajendran
For Respondent : Mr.S.Ravi
Additional Public Prosecutor
1/13
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Crl. A(MD)No.607 of 2019
JUDGMENT
DR.G.JAYACHANDRAN,J.
AND
SUNDER MOHAN,J.
The appeal filed by the sole accused, who was found guilty for
an offence under Section 302 of IPC.
2. The case of the prosecution is that on 28.04.2014 at about
10.30 hours, the deceased, who was mentally ill, had been peeping into the
house of the accused and watching the wife of the accused taking bath
which has provoked the accused and attacked the deceased with iron rod
(M.O.1) and caused his death. The occurrence was witnessed by P.W.2
(Minor.Velmurugan) aged about 12 years, who informed the mother of the
deceased (P.W.1). P.W.1, thereafter, went to the police station and gave a
complaint and the same was marked as Ex.P1. Pursuant to the complaint,
FIR was registered for the offence under Section 302 IPC in Cr.No.120 of
2014.
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Crl. A(MD)No.607 of 2019
(i) The investigation was taken up by the Investigating Officer
and pursuant to the investigation, on 29.04.2014 at about 13.00 hours the
accused was arrested and in the presence of the Village Administrative
Officer, the accused gave a confession statement leading to recovery of
weapon used for attacking the deceased and also blood stained cloths. The
said Material Objects were recovered under the mahazar. After collecting
the evidence and recording the statement of the witnesses, final report was
filed along with the Observation Mahazar, Postmortem Report and Forensic
Reports.
(ii) The learned Judicial Magistrate, Vilathikulam, taking note
of the fact that the offence is exclusively triable by the Court of Sessions,
committed the case to the District and Sessions Court, Tuticorin after
furnishing the copies of documents relied by the prosecution. The learned
trial Judge framed the charges under Section 302 IPC and 506(ii) IPC
against the accused. The accused denied the charges and claimed to be
tried.
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Crl. A(MD)No.607 of 2019
3. Accordingly, to prove the charges, the prosecution has
examined 19 witnesses, marked 20 Exhibits and 8 Material Objects.
Incriminating evidence against the accused was put to him under Section
313 Cr.P.C., and opportunity was given to him to marshal evidence on his
behalf. D.W.1 Tmt.Kalpana was examined on the side of the accused and
Ex.D1 was marked.
4. The trial Court, on appreciating the evidence let in by the
prosecution and response of the accused to the incriminating evidence
against him, arrived at a conclusion that the accused is guilty of offence
under Section 302 IPC and acquitted him from the charge under Section
506(ii) IPC for want of evidence. The trial Court has convicted and
sentenced the accused as under:
Offence under Conviction and Sentence
Section
302 IPC To undergo life imprisonment and to
pay a fine of Rs.5,000/-, in default, to
undergo rigorous imprisonment for one
year.
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Crl. A(MD)No.607 of 2019
5. The said judgment of conviction is challenged in this appeal
on the ground that the case of the prosecution is highly improbable and
P.W.2-minor boy might not have witnessed the occurrence since his
presence in the school on the date and time of occurrence been proved by
the accused by examining the Head Master of the school as D.W.1 and
marked the attendance register Ex.D1.
6. The learned counsel appearing for the appellant would
contend that P.W.1 and P.W.6 are only hearsay witnesses and they reached
the scene of occurrence on hearing the P.W.2, who alleged to have witnessed
the occurrence. Since the presence of P.W.2 itself is highly doubtful
consequential evidence of P.W.1 and P.W.6 has to be ignored.
7. The learned counsel for the appellant further submits that
postmortem report marked as Ex.P3 indicates that scalds injuries all over the
body and there is no possible explanation by the prosecution, how the
deceased sustained this scalds injuries. The external injuries noticed by the
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Crl. A(MD)No.607 of 2019
postmortem doctor does not have a corresponding internal injuries.
Therefore, the cause of death as found in the postmortem report Ex.P3 is
doubtful.
8. Learned counsel for the appellant further submitted that the
alleged confession statement and recovery of Material Objects M.O.6 to 8
not been substantially proved through the independent witnesses. More
particularly, P.W.11 the Village Administrative Officer, who is signatory to
the Observation Mahazar, confession statement and recovery mahazar, has
not supported the case of the prosecution and he was treated as hostile
witness. For the above said reason, the learned counsel for the appellant
would submit that the trial Court judgment suffers with serious infirmity and
therefore, has to be set aside.
9. Per contra, the learned Additional Public Prosecutor
appearing for the respondent submitted that the evidence of P.W.2 is quite
natural and he has explained his presence in the scene of occurrence in the
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Crl. A(MD)No.607 of 2019
chief examination, the contra evidence let in by D.W.1 and Ex.D1
attendance register need to be ignored.
10. Learned Additional Public Prosecutor contended that on
the face of Ex.D1, improbablise the case of the defence since for the entire
month, the attendance register does not indicate even one absentee and it is
suggested to the D.W.1 that his school is getting aid from the Government
so to ensure grant of aid attendance is marked to all the students entrolled
whether they attended the school or not.
11. As far as the evidence of P.W.1 and P.W.6, the learned
Additional Public Prosecutor submitted that they were present nearby the
scene of occurrence and they have rushed to the scene soon after they heard
from P.W.2 about the murderous attack. P.W.1 has deposed that she saw the
accused and when she tried to prevent the accused causing injury to her son
she tried to go near him but the accused threatened her with dire
consequences and thereafter, ran away. Similarly P.W.6 the other eye
witness also had deposed that she saw the occurrence. Hence, the learned
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Crl. A(MD)No.607 of 2019
Additional Public Prosecutor submitted that even if evidence of P.W.2 is not
wholly reliable, evidence of P.W.1 and P.W.6 suffice to hold the accused
guilty of committing murder.
12. Heard the learned counsel appearing on either side and
perused the materials available on record.
13. P.W.1 is the first informant who set the criminal law into
motion. According to her complaint, at the time of occurrence, she was in
the field of Marimuthu engaged in burning wood coal. At the time, P.W.2-
Minor Velmurugan came and informed about the incident. Then she rushed
to the place of occurrence and tried to save her son but the accused after
causing multiple injury ran away with iron rod.
14. Even in the complaint, P.W.1 has stated about the previous
enmity between her son (deceased) and the accused. It is stated that 6
months prior to the incident, her son was peeping the bath room of the
accused, where the accused's wife was taking bath. When the accused tried
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Crl. A(MD)No.607 of 2019
to attack her son, her son escaped. Taking grudge over it, the accused has
attacked her son.
15. Before the Court, P.W.1 has almost reiterated the content of
her complaint Ex.P1. In the cross-examination, she admits that in the field
there about 20 workers along with her, but only she and her sister came to
the spot after hearing the P.W.2 about the incident.
16. She has deposed that when she went to the spot she saw her
son bleeding and when she reached the place her son was lying on supine
position face towards the west. This would clearly show that P.W.1 has
reached the spot only after her son has lost his breath and the probability of
seeing the accused attacking her son is remote.
17. Likewise, P.W.6 the sister of P.W.1 also has reached the
scene of occurrence only after the death of the deceased and not before that.
That is a reason why, P.W.6 is not certain about the seat of injury caused by
the accused. While perusing the postmortem report marked as Ex.P3, this
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Crl. A(MD)No.607 of 2019
Court finds that the injuries which does not corelate with the evidence of
P.W.1 and P.W.6 or P.W.2. The prosecution is silent about the scalds injuries
found over the face, anterior chest wall, upper limbs and lower limbs.
18. The explanation given by the postmorem doctor examined
as P.W.10 regarding the scalds injuries are not convincing since it is
contrary to the explanation given by Modi's in its Medical Jurisprudence
and Toxicoloy regarding the scalds injuries. The cumulative assessment of
the evidence, this Court finds that the presence of P.W.2 in the scene of
occurrence is highly doubtful in view of the evidence of D.W.1 and Ex.D1.
His presence at the scene of occurrence at 10.30 a.m., is disproved through
the evidence given by the headmaster of the school and the attendance
register marked as Ex.D1.
19. The testimony of P.W.1 and P.W.6 are equally doubtful
since the overtact of the accused spoken by them in the testimony does not
correspond to the injuries found on the body of the deceased. The case of
the prosecution regarding confession and recovery of incriminating material
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Crl. A(MD)No.607 of 2019
such as blood stained cloth and iron rod not been supported by their own
witnesses particularly, the Village Administrative Officer, who was
examined as P.W.11 but turned hostile.
20. For the above reasons, this Criminal Appeal is allowed. The
conviction and sentence imposed on the appellant/accused, by the learned I
Additional District and Sessions Court, Tuticorin, made in S.C.No.254 of
2015, dated 02.12.2019, is set aside and the appellant/accused is acquitted
of all the charges. The fine amount, if any, paid by him, shall be refunded to
him.
[G.J., J.] & [S.M., J.]
NCC : Yes 24.01.2023
Index : Yes/No
Internet : Yes
am
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Crl. A(MD)No.607 of 2019
To
1.The I Additional District and Sessions Court,
Tuticorin.
2.The Inspector of Police,
Vilathikulam Police Station,
Tuticorin District.
3.The Additional Public Prosecutor
Madurai Bench of Madras High Court, Madurai.
4.The Record Keeper,
Vernacular Records Section,
Madurai Bench of Madras High Court, Madurai.
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Crl. A(MD)No.607 of 2019
DR.G.JAYACHANDRAN,J.
AND
SUNDER MOHAN,J.
AM
Judgment made in
Crl.A.(MD)No.607 of 2019
24.01.2023
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